Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Justin R. Wall

Wall Legal Services

Huntington, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Evan Matthew Comer

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Douglas Kelly Clark,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 20, 2020

Court of Appeals Case No.

19A-CR-2252

Appeal from the Huntington 

Circuit Court

The Honorable Davin G. Smith, 

Judge

Trial Court Cause No.

35C01-1812-F5-298

Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020 Page 2 of 10

[1] Douglas Clark appeals his convictions of criminal recklessness, a Level 5 

felony;1carrying a handgun without a license, a Level 5 felony;2and three 

counts of neglect of a dependent, all Level 6 felonies.3 He also appeals the 

sentence imposed by the trial court. We affirm in part, reverse in part, and 

remand with instructions.

[2] On the afternoon of November 2, 2018, Gregory Hummer was driving in 

Huntington County. He passed a blue Ford Escape being driven by Douglas 

Kelly Clark. Hummer passed Clark on the right, believing that Clark was 

making a left-hand turn, and traveled on State Road 218 towards I-69.

[3] Next, Clark aggressively passed a semi-truck and began tailgating Hummer.

Once Clark passed Hummer, he began “brake-checking” Hummer. Tr. Vol. III,

p. 142. Eventually both Clark and Hummer drove onto I-69, and despite heavy 

traffic on that highway, Clark “amped” up his behavior and “was even more 

aggressive.” Id. at 143. Clark would either follow Hummer in order to tailgate 

him or pass Hummer in order to brake-check him. At times, Clark would drive 

alongside Hummer, boxing Hummer in with other traffic. It was during one of 

these times that the passenger side window on the Escape was rolled down, and 

1

Ind. Code § 35-42-2-2 (2014).

2

Ind. Code § 35-47-2-1 (2017).

3

Ind. Code § 35-46-1-4 (2018).
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Clark pointed a handgun at Hummer’s vehicle and fired three shots. The 

bullets struck Hummer’s vehicle but missed Hummer.

[4] Clark sped away, but Hummer followed Clark, attempting to record his license

plate number. Next, Clark made a sudden U-turn in the I-69 median, but due 

to his high rate of speed, the vehicle tipped back onto two wheels before driving 

away. At that time, Hummer observed what he believed to be two children in 

Clark’s vehicle. Hummer called 911 and was instructed to meet law 

enforcement at a nearby exit.

[5] After exiting I-69, Hummer met with Huntington County Sheriff’s Department 

Captain Malcolm Jones. Hummer reported the incident to Captain Jones, and 

Captain Jones observed three bullet holes in Hummer’s vehicle. Around that 

same time, Deputy Jamin Sands stopped alongside State Road 5 to assist Clark, 

whose vehicle had broken down. Clark had three children with him, ages nine, 

six, and four. After meeting with Hummer, Captain Jones arrived at the scene 

on State Road 5 and informed Deputy Sands that Clark’s vehicle matched the 

vehicle described by Hummer. Clark was taken into police custody.

[6] After officers located a gun holster and ammunition in Clark’s vehicle and a 

handgun in the ditch along State Road 5, they interviewed Clark. Clark 

admitted to pulling alongside Hummer’s vehicle on I-69, telling his son to roll 

down his window and lay his seat back, and firing three shots at Hummer’s 

vehicle. Clark further admitted that he did not have a permit to carry the 

handgun, and he had thrown the gun in a ditch.
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[7] On December 18, 2018, the State charged Clark with Level 5 felony criminal 

recklessness, Level 5 felony possession of a handgun without a license, and 

three counts of Level 6 felony neglect of a dependent.4 On July 23 and 24, 

2019, Clark was tried by jury in absentia, after failing to appear without any 

notification. Clark was found guilty as charged.

[8] The trial court scheduled a sentencing hearing for August 12, 2019, but Clark 

failed to appear. Clark was later arrested on a warrant, and a sentencing 

hearing was held on September 16, 2019. At the sentencing hearing, Clark 

moved to vacate the jury’s verdict, arguing that his trial in absentia violated his 

right to be present at trial under the Sixth Amendment to the United States 

Constitution and article 1, section 13 of the Indiana Constitution, a motion 

which was denied by the trial court.

[9] The trial court sentenced Clark to six years with 180 days suspended to 

probation for his criminal recklessness conviction, six years with 180 days 

suspended to probation for his conviction of possession of a handgun without a

license, and two and one-half years with two years suspended to probation on 

each of his neglect of a dependent convictions. Clark was ordered to serve all 

sentences consecutively except for the criminal recklessness and possession of a

handgun without a license sentences, which were ordered to be served 

4 The State also charged Clark with Class A misdemeanor possession of a firearm after a conviction for 

domestic battery but ultimately dismissed that charge. 
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concurrently, for an aggregate sentence of thirteen and one-half years, with six

and one-half years suspended to probation.

I. Trial in Absentia

[10] Clark contends that the trial court erroneously tried him in absentia, violating his 

right to be present at trial under both the Sixth Amendment to the United States 

Constitution and article 1, section 13 of the Indiana Constitution. Both the 

Sixth Amendment to the United States Constitution and article 1, section 13 of 

the Indiana Constitution provide a defendant in a criminal proceeding the right 

to be present at all stages of his trial. Jackson v. State, 868 N.E.2d 494 (Ind. 

2007). A defendant, however, may be tried in absentia if the trial court finds that 

the defendant knowingly and voluntarily waived that right. Id. Furthermore:

When a defendant fails to appear for trial and fails to notify the 

trial court or provide it with an explanation of his absence, the 

trial court may conclude the defendant’s absence is knowing and 

voluntary and proceed with trial when there is evidence that the 

defendant knew of his scheduled trial date. 

Id. at 498 (quoting Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989)).

[11] “The best evidence that a defendant knowingly and voluntarily waived his or 

her right to be present at trial is the defendant’s presence in court on the day the 

matter is set for trial.” Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997)

(citation omitted), modified on reh’g, 685 N.E.2d 698 (Ind. 1997). “The trial 

court may presume a defendant voluntarily, knowingly and intelligently waived 

his right to be present and try the defendant in absentia upon a showing that the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020 Page 6 of 10

defendant knew the scheduled trial date but failed to appear.” Brown v. State, 

839 N.E.2d 225, 227 (Ind. Ct. App. 2005) (citation omitted), trans. denied.

[12] That said, a defendant who has been tried in absentia must be provided an 

opportunity to explain his absence and thereby rebut the initial presumption of 

waiver. Id. (quotation omitted). “As a reviewing court, we consider the entire 

record to determine whether the defendant voluntarily, knowingly, and 

intelligently waived his right to be present at trial.” Id. at 228 (quoting Soliz v. 

State, 832 N.E.2d 1022, 1029 (Ind. Ct. App. 2005), trans. denied). We review the 

defendant’s explanation of his absence as part of the evidence used to determine 

whether it was error to try him in absentia. Id.

[13] Here, we conclude that the trial court properly found waiver. Neither party 

disputes that Clark was made aware of his July 23, 2019 trial date at his March 

11, 2019 pretrial hearing. At the pretrial hearing, Clark clearly acknowledged 

his trial date in a colloquy with the trial court as follows: 

THE COURT: And that will be at 8:00 a.m. for final pretrial 

conference. Mr. Clark, did you hear those dates? 

[CLARK]: Yes. 

THE COURT: Okay, do you understand that we’re setting this 

matter for trial today? Okay? So you’re going to need to be here 

for final pretrial conference on June 17th at 8:00 a.m. and then 

our trial will be July 23rd, 24th, and 25th at 8:30. 

[CLARK]: Alright. 

THE COURT: Okay? It’s your responsibility to be here those 

days. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020 Page 7 of 10

[CLARK]: Yes. 

Tr. Vol. III, pp. 18-19. Both parties also agree that Clark failed to appear at 

trial. Finally, after the trial, Clark did not provide his trial counsel or the trial 

court a reason for his absence. 

[14] Clark argues, however, that he was not afforded an opportunity to rebut the 

presumption of waiver. We disagree. On September 16, 2019, the trial court 

held a sentencing hearing, at which Clark moved to vacate the jury’s verdict 

based on being tried in absentia. At the hearing, through his counsel, Clark 

stated:

Mr. Clark stands ready to participate in his defense and would 

like his day in court. Uh, so we believe that proceeding with 

sentencing today would be inappropriate as the Court again 

denied our Motion to Continue his jury trial that was held in 

absentia. We believe as part of his state- Indiana State and 

United States Constitutional rights, Mr. Clark has a right to be 

present and participate at his trial and in his defense, and the 

right to confront and question witnesses, and all the other rights 

guaranteed to him by the State and Federal Constitutions. 

Tr. Vol. IV, p. 89. Clark was provided an opportunity to rebut the presumptive

waiver, but he failed to provide any reason whatsoever for his absence at trial. 

We will not second-guess the conclusion of the trial court that Clark simply 

“chose not to appear” at trial. Id. at 90. Defendants who are tried in absentia

are not entitled to a new trial just because they have decided they want to show 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020 Page 8 of 10

up and participate after the fact. The trial court did not err in concluding that 

Clark knowingly and voluntarily waived his right to be present at his trial. 

II. Appropriateness of Sentence 

[15] Clark contends that his sentence is inappropriate and asks that it be reduced to 

five and one-half years. At the outset, the State acknowledges, and we agree,

that Clark’s aggregate thirteen and one-half year sentence is improper pursuant 

to Indiana Code section 35-50-1-2(d) (2018). That statute provides, in relevant 

part:

(d) Except as provided in subsection (c), the total of the 

consecutive terms of imprisonment to which the defendant is 

sentenced for felony convictions arising out of an episode of 

criminal conduct may not exceed the following:

* * * * *

(2) If the most serious crime for which the defendant is 

sentenced is a Level 5 felony, the total of the consecutive 

terms of imprisonment may not exceed seven (7) years. 

Id.; see also Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005) (concluding that the 

phrase “terms of imprisonment” in Indiana Code section 35-50-1-2 should be 

read “to include any period of incarceration a defendant is sentenced to, even if 

all or a portion of that period of time is suspended.”). Based on the State’s 

concession that Clark’s offenses were an episode of criminal conduct, Clark’s 

aggregate sentence cannot exceed seven years. We remand to the trial court 

with instructions to vacate the six and one-half years of his sentence that the 

trial court suspended to probation.
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[16] That said, Clark was sentenced to seven years of incarceration, and we will 

review said sentence to determine whether it was inappropriate. We may revise 

a sentence if, “after due consideration of the trial court’s decision, the Court 

finds that the sentence is inappropriate in light of the nature of the offense and 

the character of the offender.” Ind. Appellate Rule 7(B). “Sentencing is 

principally a discretionary function in which the trial court’s judgment should 

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 

2008) (internal citations omitted). The defendant bears the burden of proving 

that his sentence is inappropriate in light of both the nature of his offense and 

his character. Gil v. State, 988 N.E.2d 1231 (Ind. Ct. App. 2013) (quotation 

omitted).

[17] The nature of Clark’s egregious offenses does not support a reduction in his 

sentence. Clark was convicted of Level 5 felony criminal recklessness, Level 5 

felony possession of a handgun without a license, and three counts of Level 6 

felony neglect of a dependent, after an apparent bout of unjustified road rage 

led to his decision to fire three gunshots at Hummer’s vehicle as the two drove 

down a highly trafficked interstate. Clark’s appalling recklessness put not only 

Hummer’s life in jeopardy but also the lives of his own children and the other 

drivers on the interstate. 

[18] Clark’s character also does not support a reduction in his sentence. Clark has 

prior convictions for Level 6 felony battery resulting in moderate bodily injury;

Level 6 felony battery on a person less than fourteen years old; Level 6 felony 

domestic battery in the presence of a child less than sixteen years old; and two 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2252| April 20, 2020 Page 10 of 10

counts of Level 6 felony neglect of a dependent. Clark was also on probation at 

the time he committed the instant offenses and had a pending criminal case in 

another county when he was sentenced in this matter. Despite his prior 

contacts with the criminal justice system, Clark has not conformed his behavior 

to societal norms. Clark has failed to establish that his sentence is 

inappropriate. 

[19] For the reasons stated above, we affirm in part, reverse in part, and remand to 

the trial court with instructions to vacate the six and one-half years of Clark’s 

sentence that were suspended to probation, leaving Clark with a sentence of 

seven years of incarceration to be served.

[20] Judgement affirmed in part, reversed in part, and remanded with instructions.

Kirsch, J., and Brown, J., concur.